Page:Cude v. State, 237 Ark. 927 (1964).pdf/3

] S R, Associate Justice. The issue is the authority of the courts to appoint a guardian for children between the ages of 7 and 15, inclusive, who are not attending school, and to give the guardian custody of the children with directions to have them vaccinated to facilitate school attendance.

Appellants, Archie Cude and his wife, Mary Frances, are the parents of eight children, three of whom are between the ages of 7 and 15, inclusive. The children are Wayne Monroe, age 12, Delia Marie, 10, and Linda May, 8. Wayne went only to the second grade; the other two have not attended school at all. The children are not in school for the reason that the school authorities will not permit them to attend school because they have not been vaccinated against smallpox. The Cudes will not permit such vaccinations; they contend that it is contrary to their religion.

This litigation was commenced by Ben Core, Prosecuting Attorney for the Ninth Judicial District of the State of Arkansas, filing in the Probate Court of Polk County, on behalf of the State, a petition alleging that the three Cude children were not attending school; that the father, Archie Cude, had been fined on three occasions for violating the law requiring that parents send their children to school, and he has persisted in his refusal to have the children vaccinated so that they can attend school, and that the father has avowed that he will never permit the children to be vaccinated; that unless the children are removed from the custody of the natural parents they will not have all the benefits and advantages of a school education. The petition asks that the children be placed in the custody of the Child Welfare Division of the State Welfare Department.

The appellants responded, contending first, that the probate court did not have jurisdiction, and further, that vaccination of the children was against respondents' religious beliefs. There was a full scale hearing; it was shown that the children were not attending school because they had not been vaccinated; that the appellants